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National Industrial Court

MR. OFEIMUN O. GODWIN VS UNIVERSITY OF BENIN BENIN CITY

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

                   HOLDEN IN AKURE

      BEFORE HIS LORDSHIP: HON. JUSTICE O.O. OYEWUMI

 

DATE:  27TH NOVEMBER, 2018                                 

SUIT NO: NICN/BEN/10/2014

BETWEEN

  1. OFEIMUN O. GODWIN

                       

CLAIMANT

 

AND

  1. UNIVERSITY OF BENIN

BENIN CITY, NIGERIA

 

  1. THE GOVERNING COUNCIL

UNIVERSITY OF BENIN.

BENIN CITY, NIGERIA

 

  1. UNIVERSITY OF BENIN

INTEGRATED ENTERPRISE LTD,

UNIBEN GUEST HOUSES

UNIVERSITY OF BENIN

BENIN CITY, EDO STATE, NIGERIA

DEFENDANTS

 

  1. UNIBEN INTERGRATED ENTERPRISE

MANAGEMENT BOARD

UNIBEN GUEST HOUSE

UNIVERSITY OF BENIN

EDO STATE, NIGERIA

 

  1. PROF. (MRS) AHONKAI

         HEAD OF DEPT. PHARM, MICROBIOLOGY,

         FACULTY OF PHARMACY,

         UNIVERSITY OF BENIN AND THE CHAIRPERSON,

         INVESTIGATING COMMITTEE OF

UNIBEN GUEST HOUSES.

UNIVERSITY OF BENIN               

DEFENDANTS

 

 

 

REPRESENTATION:

E.R. Idubor holding the brief of S.A. Ogbodo Esq for the claimant

S.I. Abasilim with A.K Eugine and L.E Onorogbe  Mrs  for the defendants

 

                                          JUDGMENT

The claimant by a General Form of Complaint filed on the 12th of March, 2014 and later amended on the 26th October 2015, claims against the defendants jointly and severally as follows:

  1. A Declaration  that the summary dismissal of the claimant from the services/employment of the defendants through their letter dated 14th February 2014 on allegation of Wild Spread Corruption and Evil Practices in Uniben Guest House is unlawful, illegal, unconstitutional and of no effect

  1. A Declaration that alleged purported or and anonymous petition: Wild Spread Corruption and Evil Practices in Uniben Guest House for which the defendants set up an investigation committee is unknown to law therefore unlawful, illegal, unconstitutional and of no effect.

  1. A Declaration that the Investigation Committee on Uniben Guest House set up by the defendants presided over by the 5th defendant pursuant to the allegation of Wild Spread Corruption and Evil Practices in Uniben Guest House/Blue Meadow, which is unknown to law is unlawful, illegal, unconstitutional and of no effect whatsoever.

  1. A Declaration that the claimant is still a staff of the defendants and therefore entitled to all remuneration, allowance and promotion.

  1. An Order setting aside the dismissal of the claimant by letter dated 14th February, 2014 as being illegal and unlawful.

  1. An Order directing the defendants to reinstate the claimant to his position forthwith.

It is the claimant’s case that he was employed on probation by the 3rd and 4th defendants as an Auditor sometimes in 29th August, 2002 and his employment was confirmed on the 9th January, 2006. He stated that he rose through the ranks over the years and earned his promotion on the 9th January, 2006 to the position of a Senior Auditor Grade Level 07 Step 4 on annual salary of Two Hundred and Eighty-Two Thousand and Six Naira (N282,006.00). That he was invited through a letter dated 4th November, 2013 to appear before an Investigating Committee constituted by the defendants to investigate an alleged anonymous petition titled “Wild Spread Corruption and Evil Practices in Uniben Guest House/Blue Meadows”. He stated that he was neither served with a copy of the said petition nor was given adequate time and facilities to prepare for his defence nor the content of the said petition read over to him. That pursuant to the said letter of invitation, he appeared before the Chairperson of Investigating Committee (Prof Mrs. Ahonkai) and members of the Committee about three times and throughout the period he appeared, he was neither asked questions accusing him of any wrong of engaging in any financial embezzlement and the alleged issues of Corruption and Evil Practices rather he was subjected to series of question among which included his schedule of duty and what he knew about stolen items in the guests house etc. He pleaded that he was served a letter of dismissal dated 14th February 2014. That he appealed to the Vice Chancellor of the 1st Defendant through the Chairman of the 3rd Defendant to exhaust the internal mechanism on the rules governing his employment, but the Defendants refused to listen to him. That  there is nothing linking him with the case of wide spread corruption and evil practices in Uniben Guest House as he does not handle money by the schedule of his duties and no reported case of loss or stealing of money was traced to him. That the said petition was aimed at the Uniben Integrated Ltd General Manager, Mr. Kayode Somori and one Mrs Patricia Njokwu, the head of Uniben Fast Food but instead of investigating him, he was redeployed to another subsidiary of the defendants and dismissed Mrs Patricia Njokwu. It is then his contention that the defendants have no right in law to summarily dismiss him from their services in an allegation of crime without proper investigation as such allegation requires the investigation by the Police which is vested with authority to do so.

The defendants on the other hand  filed their joint statement of defence on the 28th May 2014, they averred that the allegations against the claimant were precise and weighty bothering on financial mismanagement, embezzlement and other forms of misconduct and that the allegation of financial mismanagement and other forms of wrong doing were clearly explained to the claimant before and during the sitting of the panel of investigation and that the questions that were put to him were questions incidental to his schedule of duty as the Internal Auditor of the Uniben Enterprises. They continued that his schedule of duty include but not limited to ensuring that the income and expenditure of the enterprise is properly kept, monitored and maintained for which he failed to do. On his letter of appeal to the Vice Chancellor, it was found to be lacking in merit and that the allegation of financial mismanagement leveled against the claimant were quite weighty and same were substantiated through the various oral and documentary evidence as contained in the investigating committee report. It is also their statement that the redeployment of Mr. Kayode Somorin was part of the management’s routine decision aimed at further strengthening the overall capacity of the Enterprise. They further stated that the allegation of corruption was one of the several allegations of gross misconduct against the claimant which does not require investigation by the police or any other law enforcement agency before they can exercise disciplinary action against him. They stated that the actions taken by them were in tandem with the relevant laws and in particular the conditions of service of the claimant’s employment.

During trial, the claimant testified for himself as CW, he adopted his sworn deposition dated 26th October 2015, he also frontloaded some documents which were admitted and marked as Exhibit OG-OG7. The defendants also adopted their statement on oath deposed to by one Mr. Efosa Omoregie dated the 28th May, 2014 as his evidence in the case; he tendered some documents which were admitted in evidence as Exhibit EO and EO1

In compliance with Order 45 of Rules of this Court 2017, parties filed their final written address; the defendants filed their written address on the 20th June 2018 and canvassed three (3) issues for the determination of the Court viz:

  1. What is the nature of contract between the parties?
  2. Whether the contract  was properly  determined and,
  3. If poser 2 is answered in the affirmative, whether the claimant is entitled to the reliefs sought or any reliefs at all.

On issue one,  learned defence counsel submitted that the totality of all the contract documents tendered before the Court establish that the contract of the claimant with the defendant is that of master and servant not covered by statutory rules.  He relied on the case of L.C.R.I v. Mohammed [2005] 11 NWLR (Pt. 935) 1 CA, and submitted further that incompetence and other misconduct which is incompatible with the master’s business may give rise to dismissal. He also noted that a careful study of the report of the Committee which investigated the widespread corruption and evil practices in the Uniben Guest House/Blue Meadow (Exhibit EO1) reveals the sordid activities and fraudulent practices for which the claimant is the main actor and that at Exhibit EO1, the claimant’s culpability includes incompetence and outright fraudulent acts which made the defendants exercise the power of summary dismissal though the committee, after the general findings recommended that the claimant should be reprimanded, demoted and redeployed. In the whole, counsel submitted that the employment of the claimant being governed by the Agreement between the parties, entitles the defendants to do away with the contract of the claimant for good, bad or for no reason at all and as such, the employer was justified in exercising its power as enshrined in the contract, the Court was therefore urged to so hold.

 On issue two, counsel placed reliance on the cases Annam v. B.S.J.S.C [2006] ALL FWLR (Pt. 296) pg 843 at 804 Ratio 7, NEPA v. Isiereore [1997] 7 NWLR (Pt. 511) 135 CA; Annam v. B.S.J.S.C (supra) pages 846 and 847 Ratio 3 and Arinze v. First Bank [2004] ALL FWLR (Pt. 217) page 668  and submitted that by the report of the investigative committee, the claimant’s incompetence, dishonesty and fraudulent acts were enough to set the employer on edge and justify his summary dismissal and as regards the claimant’s claim that the act complained of against him were of criminal import of which only a competent Court of law can look into, it is the submission of counsel that he was never dismissed or purported to be dismissed for a crime but for misconduct and furthermore, that there is no requirement of criminal prosecution of a servant by a master before an employee can be summarily dismissed. He cited in support the case of Annam v. B.S.J.S.C (supra) pages 846 and 847 Ratio 2. Counsel also relied on Isiereore v. NEPA (supra) where it was stated that where an employee claims that his employment was not validly or legally determined, it is his duty to prove same as he cannot rely on the weakness of the case of the employer, and went on to submit that the totality of the claimant’s case have not adduced any credible evidence to show the manner the defendants acted wrongly. It is however submitted that if the dismissal deviated from the form agreed to, it will only amount to wrongful dismissal, in which case, that the dismissal cannot be declared null and void or illegal. He concluded on the issue by urging the Court to hold that the contract between the parties has been properly determined while the claimant’s attempt to ascribe motive to his termination should be discountenanced.

On issue three, counsel further stated that the reliefs sought by the claimant cannot hold water, he continued that once the Court finds that the contract between the parties is the common law contract of master and servant not governed by statutory rules or constitutional force, then the Court cannot grant the main reliefs of the claimant and that he cannot be reinstated under the general principle that a Court cannot force a willing employee on an unwilling employer, he also submitted that assuming but not conceding that the dismissal was wrongful, the Court cannot declare it illegal but that the only remedy available to the claimant is as enshrined in the agreement of the parties and that on the whole, claimant’s case lacks merit, is gold-digging, baseless which ought to be dismissed in its entirety.

 The Claimant on the other hand also filed his written address on the 8th of June 2018 and distilled two (2) issues for the determination of the Court, which are:

  1. Whether there was basis for the dismissal of the claimant in law when there was no query issued to him for an allegation of forgery.

 

  1. Whether the service condition of the defendants contains offence of Wide Spread Corruption and Evil Practices for which the claimant could be dismissed which are unknown to the condition of service and for which no Court has convicted the claimant.

Regarding issue one, it is the contention of the learned Claimant’s counsel that by Section 12.6 of the 3rd Defendant’s condition of service, An appointee shall be summarily dismissed on ground of dishonesty, gross misconduct or criminal conviction by a Court of law, he continued that the illegal dismissal of the claimant without following the provisions of Exhibit EO1 makes the dismissal null and void, he also submitted further that the Court is enjoined to apply the provisions regulating the employer and employee or master and servant to the letters because dismissal is an impunity action against an employee. Credence was placed on the cases of Dr. Taiwo Oloruntoba & 4Ors v. Prof Shunaib O. Abdul-Raheem & 3 Ors [2010] 178 LRCB page 131 at 147 ratio 17:  Kwara State Civil Service Commission & 2 Ors v. Joshua Dada Abiodun & 11 Ors [2010] 14 WRN pg 52 at 68 Ratio 12; Mr. A.S. Jombo (J.P) v. Petroleum Equalization Fund (Management Board) & 2 Ors [2005] 132 LRCN pg 2855 at 2858 Ratios 3. Counsel argued further that once an act is declared a nullity following the detection of fundamental vices, it is null and void and having declared the dismissal null and void, such is automatically returned to status quo and is entitled to arrears of salaries and emoluments, he concluded on the issue that in view of the above authorities and the Condition of Service (Exhibit EO1), the Court should set aside the dismissal of the claimant and grant his reliefs.

On issue two, Counsel argued that the reason for the dismissal of the claimant as contained in Exhibit OG4 is as a result of the consideration of the report of committee that investigated “Widespread corruption and evil practices in Uniben Guest House/Blue Meadows. Learned counsel argued that a look at Exhibit E01 shows that an employee can only be dismissed as contained in paragraph 12.6 on the ground of dishonesty, gross misconduct or criminal conviction by a Court of law. He then submitted that the dismissal of the claimant by the defendants based on the report of the committee which investigated alleged Widespread Corruption and Evil Practices is illegal, unlawful and ultra vires the powers of the said committee which is not a Court of law that can try criminal matters as provided for under the Nigeria jurisprudence. Reliance was placed on the case of B.A. Imonikhe v. Unity Bank Plc [2011] 202 LRCN pg 70 at 74 Ratio 5. He argued further that there is no evidence of any query issued to the claimant on the basis of the alleged allegation and no evidence of the offence for which he was dismissed is known to the condition of service contained in Exhibit E01 but that the defendants illegally applied all the procedures known to labour law in dismissing the claimant contrary to the principles of rule of law. He therefore urged the Court to hold that the dismissal of the claimant is illegal, unlawful, and null and void and order his reinstatement to his former position and grant his reliefs.

After a careful consideration of the facts of this case and the defence thereof; documents tendered in evidence as well as the oral evidence of the witnesses and written submissions of counsels on both sides of the divide, it is my respectful view that the sole issue that would best serve the justice of this case is-  Whether or not the claimant has proven his case to be entitled to the reliefs sought?     

The claimant’s grouse for which he took out a Complaint before this Court is that his employment with the 3rd and 4th defendants was summarily dismissed on the 14th February 2014 by the management of the University of Benin (the 1st and 2nd defendants) on the recommendation of the investigating Committee set up by the 3rd and 4th Defendants under the chairmanship of the 5th Defendant on the alleged offence of “Wide Spread of Corruption and Evil Practices in UNIBEN Guest House/Blue Meadows, his contention is that the said dismissal is unlawful, illegal and unconstitutional. The defendants in response contended that the allegation levied against the claimant were weighty and bordered on financial mismanagement, embezzlement and other forms of gross misconduct incidental to the discharge of his duty whilst in the service of the 3rd and 4th defendants, they also stated that the allegations were substantiated with oral and documentary evidence hence the dismissal of the claimant’s employment.

The question to answer is whether or not claimant’s dismissal is wrongful, Wrongful dismissal as evinced in plethora of cases is held to be an unjustifiable dismissal of a servant by the master from an engagement for service for a fixed time or, if upon notice, before the expiration of the period of notice. The servant may elect to regard the contract as repudiated, which can recover remuneration for what he has actually done on a quantum meruit, or if he treats the contract as continuing, he may sue for damages for the loss of employment and for wages as he has lost the opportunity of earning. See. Elijah I. Ezekwere v. Golden Breweries Ltd [2000] 8 NWLR (PT. 670) P. 648 at 656-657. It is the law that an employer who hires an employee has the right to dismiss the employee summarily in a case of gross misconduct. See Ante v. University of Calabar [2001] 3 NWLR (PT.700) 239 C.A. where the Court of Appeal held that-

“When an employee is guilty of gross misconduct which may be referred to as a conduct of grave and weighty character as to undermine the confidence which exists between him and his employer or conduct which works against the deep interest of the employer, he could be lawfully dismissed summarily without notice and without wages”.

However, the right of an employer to dismiss its employee must be done in line with the conditions of service between it and the employee.

It is apparent on record and admitted by the parties on record that the employment relationship between the claimant and the 3rd defendant is one of master and servant relationship. In an employment of this nature, a relationship where the servant holds his employment at the pleasure of the master. Contracts of master and servant without statutory flavour are classified as ordinary contract of service. Such contracts are governed by an employee Handbook and or letter of employment where the conditions of service are spelt out. The master can terminate the service of the employee with, or without reasons but must comply with the terms of the contract in terminating the relationship. See the cases of Oforishe v Nigerian Gas Ltd [2017] LPELR-42766 SC; Olatunbosun v NISER Council [1988] 19 NSCC (Pt.1) p.1025; Ojabor v. Hon. Minister of Communications &Ors [2018] LPELR-44257 (CA) Olaniyan v. Unilag [1985]  2 NWLR (Pt.) P.599, Olarewaju v. Afribank (Nig) Plc [2001] 13 NWLR (Pt 731) P.691; Iderima v. RSCSC [2005] 16 NWLR (Pt 951). Also an employee who complains that his termination/dismissal is wrongful must place before the Court the terms of his employment and in what manner the terms of employment was breached. See the cases of Obelema N. Briggs v Ibinabo Harry & 2 ors [2016] 9 NWLR (1516) P. 45; Cadbury Nigeria PLC v Olubunmi Oni [2014] 3 ACELR P. 118.

The Claimant in prove of his case tendered before this Court his letter of employment and the 3rd defendant’s condition of service 2012. That is exhibits OG, and OG7. According to him his letter of appointment, and condition of service and staff handbook are the documents regulating his employment. Our case law is replete with authorities on the nature of master-servant relationship, in that an employer has a right to dismiss an employee on an allegation of misconduct but same must be done in consonance with the contract of employment. As in any form of contractual relationship, parties are bound by the terms and conditions of the contract of service as it is the bedrock upon which the employment relationship is based, See the cases of  Obanye v. Union Bank of Nigeria Plc[2018] LPELR-44702 SC, Kunle Osisanya v. Afribank Nig  Plc [2007] LPELR-2809 SC @25-26 Idoniboye-Obu v. NNPC [2003] LPELR -1426, Fakuade v. O.A.U.T.H C Management Board [1993] LPELR-1233 @14-15 (pars G-B), Babatunde Ajayi v. Texaco Nig. Ltd & Ors [1987] LPELR- 293 @10-11 SC.1. It is in this regard that I find that this case is to be determined principally on the terms of contract presented by the parties before me, i.e the Uniben Guest House, University of Benin condition of services, exhibit OG7/EO1. The terms of this document is binding on the claimant and the defendants in this case.

It is also apt to discuss the argument of the learned claimant Counsel contention that when an employer bases his dismissal on allegation of commission of a crime, he must satisfy the Court that such an employee was convicted by a Court before he can base his dismissal on it. It is imperative to state that the argument is misconceived as the position of the law is trite in employment relations that an employer has the vested and inherent right to exercise disciplinary actions and powers on his employee within the confines of the condition of service guiding their employment relationship. More so, where an allegation against such employee is that of gross misconducts or that which brothers on criminality it is neither necessary nor is it constitutionally required under Section 36(1) of the 1999 Constitution that such employee must first be tried before the Court of law before his employer can validly exercise disciplinary action against him, See the cases of National Judicial Council &Ors v. Hon Mr Justice C.P.B Senlong &Ors [2010] LPELR 4582; Samson Kehinde Akindoyin v. Union Bank of Nigeria Plc [2015] 62 NLLR (Pt 217) 259; P.C Mike Eze v. Spring Bank Plc [2011] LPELR-2892 SC. It thus flows from these case law authorities that the defendants are not duty bound or obligated to wait for the outcome of the Prosecution of the Court (if any) on the allegation of wide spread corruption and evil practices against the claimant before exercising any disciplinary action whatsoever in line with the condition of service existing between them, the defendants can at will exercise such action in as much as it does not contravenes the provision set out in their contract.

It is the claimant’s contention that his summary dismissal from the services/employment of the defendants through their letter dated 14th February 2014 on allegation of Wild Spread Corruption and Evil Practices in Uniben Guest House is unlawful, illegal, unconstitutional and of no effect. The claimant averred vide paragraph 8 of his amended statement of facts that he was invited vide Exhibit OG2 to appear before the investigating Committee of the 1st defendant on the 4th November, 2013 on the allegation of WIDE SPREAD OF CORRUPTION AND EVIL PRATICES IN UNIBEN GUEST HOUSE/BLUE MEADOWS, it is also his grouse that he was neither served with a copy of the petition nor was he given adequate time and facilities to prepare for his defence. He stated that no query was issued to him on the allegation before he was summoned to appear before the investigating Committee on the alleged act and there is even no evidence of corruption against him. The defendants on the other hand vehemently denied  all the material allegation, they contended that the allegation levied against the claimant were weighty and did not require any investigation by the police or any other law enforcement agency before disciplinary action could be exercised, they also noted further that the allegation were such on corruption and gross misconduct.

By virtue of Section 137 (1) of the Evidence Act 2011, in civil cases, the burden of proving the existence or non-existence of a fact lies upon the party against whom judgment would be given if no evidence were adduced by either party. See the cases of Cadbury Nig Plc v Oni supra; NITEL Plc. v. Akwa [2006] 2 NWLR (PT. 964) 391; Nigerian Gas Co. Ltd v Dudusola [2005] 18 NWLR (957) 292; George Onwudike v First Bank of Nig. Plc [2013] LPELR, 20385. It is trite that an employer, before dismissing his employee, must satisfy the requirements of fair hearing by bringing the allegation against the employee to his notice and afford him adequate time to reply to same. It is settled law that in a master servant relationship, where a party is given ample opportunity to present his case within the confines of the terms and conditions of service, he would be said to have been given a fair hearing. See Imonikhe v. Unity Bank Plc [2011]LPELR- 1503SC.

Now, it is appropriate to consider the provision of the Condition of Services and the Staff Handbook (Exhibit OG7/EO1) on the appropriate procedure that the defendants ought to have followed before dismissing the claimant’s employment. A cursory look at Exhibit OG7, paragraph 12.0 provides for disciplinary measures which includes dismissal and at paragraph 12.6, it states thus that “an appointee shall be summarily dismissed on the ground of dishonesty, gross misconduct, or criminal conviction by a Court of law” at paragraph 12.10, disciplinary proceeding was provided for and it states as follows:

“If the nature of alleged offence is such as a warrant summary termination or summary dismissal, the following procedure shall be followed:

  1. The employee shall be notified in writing on the grounds upon which disciplinary action is taken against him/her.
  2. He/she may be placed on suspension on the recommendation of the disciplinary committee.
  3. The matter shall be investigated by the disciplinary committee.
  4. The employee shall be given every opportunity to make his/her representation in response to charges against him/her.
  5. The disciplinary committee shall make recommendation to the management committee on the matter.
  6. The management committee shall review the disciplinary committee’s report and approve appropriate measures

The staff advisory committee (Management Committee) Secretary shall communicate the outcome to the affected staff.” 

The provision stated supra is also in tandem with the procedure laid down in UNIBEN Integrated Enterprises Limited, University of Benin, Staff Handbook (Exhibit EO1), page 6, with an additional procedure
that

“i.  Such report shall be sent to the board for consideration and final     approval.”

It is evident from the above provisions that the Claimant must first, be notified in writing the ground upon which disciplinary action is to be taken against him and subsequently he may be placed on suspension and the matter would be investigated by the investigating committee, the claimant must also be given an opportunity to also make proper representation for himself and respond to the allegations levied against him. Afterwards the Investigating Committee shall make recommendation to the Management Committee on the Matter and review the report of the Investigating Committee and the outcome will be communicated to the claimant by the secretary of the staff advisory management committee and/or to the Board for consideration and final approval. In the case at hand, it is evident on record that the Claimant was through a letter dated 4th November 2013, Exhibit OG2, titled “Notice of re-invitation” to appear before the Investigating Committee constituted by the defendants to investigate the alleged wide spread corruption and evil practices in Uniben Guest House/Blue meadows. Paragraph 1 of the letter states thus-

I write to inform you that you have been invited by the above mentioned Committee to appear before it at the time and place below stated.

It is clear to me by the letter of invitation that the claimant was never told of any infraction before his appearance at the committee. An invitation to do what or for what purpose? If I may ask. The letter failed to disclose.

By Exhibit OG7, that is the report of the committee, it is disclosed therein that the claimant in January, 2014 was one of the staff of the 3rd defendant listed to be questioned by defendants’ disciplinary committee to defend the allegation against him and after which he was dismissed on the 14th of February, 2014. It is evident at page 21 of the report that the claimant was questioned on his schedule of work. I do not find any document on record to show that the claimant was duly notified of the allegation levied against him, the details of the allegation were not also stated in Exhibit OG2, i.e. the letter of invitation as stated supra. This is contrary to the terms of contract binding on the parties in this suit. The law is that the exact nature of the infraction(s), which the employee is expected to answer to, must be disclosed to the employee and not by merely inviting an employee to appear before a disciplinary committee without stating the nature of the infraction against him or the case he is coming to meet. This I must say is prejudicial to the claimant, he was taken by surprise and the Court abhors that.  See Mrs Titilayo Akinsanya v. Coca Cola Nig. Ltd & 2 Ors[2017]17NWLR(Part 1593)74; Avre v. NIPOST [2014] LPELR- 22629CA; Imonikhe v. Unity Bank Plc, supra. By Mr. Valentine Ikechukwu Chiazor v. Union Bank Nig. Plc, an unreported suit No. NICN/LA/122/2014, a judgment delivered by NIC on the 12th July, 2016, a mere questionnaire cannot amount to a query in the real sense of the word. A keen perusal of Exhibit OG7/EO1 reveals that the disciplinary committee recommended that the claimant should be reprimanded, demoted for 6 months and thereafter be re-deployed. It is also clear from Exhibit OG7 and EO1 that after the disciplinary committee makes it recommendation, the management committee shall review the disciplinary committee’s report and approve appropriate measures and such report shall be sent to the board for consideration and final approval. There is nothing on record evincing that this committee of persons reviewed the report from the disciplinary committee before the claimant was eventually dismissed on February, 14th 2014. I must reiterate the constant and sound position of the law here that parties are bound by the contract of their agreement. Where the terms of the contract are clear and unambiguous, the parties are not allowed to renege on it or look elsewhere. See the cases of Akinola & ors v. Lafarge Cement WAPCO Nig Plc [2015] LPELR, 24630; Udeagha Egbe v Union Bank Plc and Anor [2015] 58 NLLR (Pt 200) P. 192. Furthermore, the reason for which the claimant was dismissed was not proved by the defendants. It is a basic principle of law that where an employer gives reason for dismissing the employment of an employee, the onus of proving the alleged reason lies on the employer/defendant. See the case of NIPOST v. Musa [2013] LPELR-20780 (CA). In the instant case, Exhibit OG3 which is the dismissal letter of the claimant stated therein that;

                                                                             “Task Force Committee on

Uniben Guest Houses

C/O Prof (Mrs) O.I Enabulele

Microbiology Department

University of Benin

Benin City

14th February, 2014

Mr. Godwin Ofeimun

Uniben Guest House

Uniben Integrated Enterprises Limited (UIEL)

 

DISMISSAL

By a letter dated 10th of February, 2014 the Management of UNIBEN in consideration of the report of the committee that investigated “Widespread Corruption and Evil Practices in Uniben Guest House/Blue Meadows” (Underline mine for emphasis) recommended that you be dismissed forthwith. Any Uniben Guest House properties in your possession should be handed over to Mr. A. Babajide

We wish you the best in your future endeavor.

Thank you

 

Prof. (Mrs.) I.O Enabulele

Chairman”

 

The defendants in this case have failed to prove which of its terms and condition of employment the claimant flouted to have warranted his dismissal. There was no allegation of misconduct levied against the claimant, the report of the disciplinary committee which culminated in claimant’s dismissal did not conclusively indict the claimant, as the disciplinary committee recommended that the claimant should be reprimanded, demoted for 6 months and thereafter be re-deployed. It also failed to follow the terms and condition of its employment in dismissing the claimant. The law is of common place that an employment can be said to have been wrongfully determined if it was done in contravention of the terms and conditions regulating the contract of service or differently put was terminated in a manner not contemplated by the stipulations in the condition of service. See Union Bank of Nigeria Plc v. Chinyere [2012] 2 NLLR, P.41 @ 62. It is also the extant position of the law in labour jurisprudence that where an employer gave reason for determining its relationship with its employee, the employer must adduce evidence to establish the reason to the satisfaction of the Court. I call in aid the Supreme Court decision in the case of Shell Petroleum Co. Ltd v. Chief Victor Sunday Olanrewaju [2008] 18 NWLR (Part 1118) 1 at 19H to 20 A – B, where Tabai, JSC had this to say:-

“…the guiding principle which has been articulated and applied in many cases including Olatunbosun Vs N.I.S.R. council (1988) 1 NSCC (1025) 188 3 NWLR (Pt. 80) 25 is that an employer is not bound to give reasons for terminating the appointment of his employee. But where as in the case, he gives a reasons or cause for terminating the appointment, the law imposes on him a duty to establish the reason to the satisfaction of the court. In the case, the appellant, having given gross misconduct as its reasons for respondent’s dismissal, has the onus to establish that the respondent was indeed guilty of the alleged misconduct that warranted his dismissal…”

It is evident as stated supra, that the Defendants gave reason for dismissing claimant from their employment, i.e. that the committee that investigation widespread corruption and Evil Practices in Uniben Guest House/Blue Meadows recommended his dismissal. I have stated earlier in this judgment that there was no formal allegation of corruption or evil practices against the claimant, I have equally stated supra that the committee never recommended that claimant is to be dismissed, rather they recommended that claimant should be reprimanded, demoted for 6 months and be redeployed. I find from the record before me as well as the evidence of the witnesses in this case that the defendants have failed woefully to prove the reason for which the claimant was dismissed and also failed to follow the procedure laid down in the condition of service and the staff handbook. Consequent upon which I find that the dismissal of the claimant from the services/employment of the defendants through their letter dated 14th February 2014 on an unproven allegation of Wild Spread Corruption and Evil Practices in Uniben Guest House is wrongful. I so find and hold.

Having held supra that the claimant’s dismissal is wrongful, what then is the appropriate order to make in the circumstances? It is claimant’s claim that he is still a staff of the defendants and therefore entitled to all remuneration, allowance and promotion and also that he is to be reinstated forthwith. The Law is long settled that the Court cannot foist an unwanted employee on an employer in a private employment as in this instance case, and also there is no general rule in a master and servant relationship which entitles the victim of a wrongful determined employment to a right to order the Court for reinstatement. See the cases of Nigerian Society of Engineers v. Ozah [2016] 64 NLLR (Part225) 11 CA; Ogbaji v. Arewa Textiles Plc & Anor [2015] 61 NLLR (Part212)32 NIC; Kuti v NSITFMB [2016] 67 NLLR (Pt. 240) 426. It is clear and devoid of any equivocation that the defendants are no longer interested in continuing engagement of the claimant in its employ, it is based on this that this Court cannot order for the reinstatement of the claimant in view of the nature of his contract of employment, consequently, in the circumstances of this case, I hereby commute the dismissal of the claimant to termination effective from the 14th February, 2014, the date the purported dismissal took effect, as equity looks on that as done which ought to be done, the maxim “justicia viltus in ut at perfectus quod futures perfectus” applies. Be that as it may, what is he entitled to? It is the law that in most employment, the contract of service provides expressly that it is terminable by giving the stipulated period of notice the measure of damages recoverable for a wrongful termination or dismissal will be the amount of salary the employee would have earned during the stipulated period. See the cases of Festus Mrakpor & Anor v Police Service Commission [2016] LPELR-40489 CA; Rene Antoun & Ors v Benson Oghene [2012] LPELR 8502 CA. In the instant case, Exhibit OG reveals at paragraph (i) that; “the appointment may be terminated on either side at any time by one month’s notice in writing or by payment of a month’s salary in lieu of notice.” The claimant in this case cannot be entitled to remuneration, allowance and promotion as there is nothing in his contract of employment evincing so and assuming without conceding that there is, he has not credibly substantiated his claims by tendering in Court his payslip to enable the Court determine his case justiciably. He is thus entitled to damages in what he was supposed to have earned as salary in lieu of notice if he was not dismissed. He is equally entitled under the contract to any accrued terminal benefits and pension. I so find and hold.

It is in the light of all the reasoning above that I find and hold that the Claimant’s claim succeeds in part and for the avoidance of doubt, it is declared and ordered as follows:

  1. That the dismissal of the claimant from the services/employment of the defendants through their letter dated 14th February 2014 on allegation of Wild Spread Corruption and Evil Practices in Uniben Guest House is wrongful.
  2. That claimant’s claims b and c fails.
  3. That the letter of dismissal dated 14th of February, 2014 is thus set aside.
  4. It is ordered that the claimant’s employment is deemed terminated by the defendant on the 14th of February, 2014.
  5. His Claim for reinstatement fails
  6. That the claimant is entitled to his one month salary as damages as well as his accrued pension and gratuity.
  7. All Judgment Sum awarded is to be paid within 30-days, failure upon which is to attract 10% Interest per annum until it is fully liquidated.

I make no award as to cost

Judgment is accordingly entered

Hon. Justice O.O Oyewumi

Presiding Judge

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